Section 25A Assault causing death

Section 25A was inserted into the Crimes Act 1900 (NSW) with alarming speed, following intensifying media coverage and public campaigns for tougher laws and mandatory sentencing to tackle alcohol-fuelled violence. However, a recent statutory review of section 25A reveals that the new law remains largely untested.

Section 25A(1) is the basic offence of assault causing death and section 25A(2) is the aggravated version of assault causing death when intoxicated.

The introduction of section 25A offences into Part 3 ‘Offences Against the Person’, Division 1 ‘Homicide’ constitutes the first substantive change to the offence structure of homicide since 1951 when infanticide was inserted under section 22A.

The new assault causing death offences under section 25A were intended to replicate similar “one punch” offences in other jurisdictions. For example, section 281 (Unlawful assault causing death) of the Western Australian Criminal Code makes it an offence if a person unlawfully assaults another person who dies as a direct or indirect result of the assault. The maximum penalty for an offence under section 281 is 10 years’ imprisonment. There is no mandatory minimum sentence.

Before section 25A, the charge for a “one punch” assault causing death was manslaughter.

“The Crimes and Other Legislation Amendment (Assault and Intoxication) Bill 2014 introduces a new offence for one-punch assaults where a person unlawfully assaults another who dies as a result of the assault, with a 20-year maximum sentence being introduced. Perpetrators of one-punch killings have previously been prosecuted in New South Wales for manslaughter. This means that when the case goes to court the prosecution has to prove beyond reasonable doubt that the offender should have foreseen that, by doing what he or she did, the victim would be placed at risk of serious injury.”

A statutory review was conducted in May 2017. The review reveals that, as at April 2017, there have been no convictions under section 25A, for either the basic or aggravated offence of assault causing death in NSW. However, a defendant pleaded guilty on 4 April 2017 at Newcastle District Court to the basic offence as an alternative to manslaughter, and is due to be sentenced.

There have been ten people charged with assault causing death under section 25A, with five pending prosecutions. In one matter, a charge of murder has replaced the charge of assault causing death.

Section 25A – the details

Section 25A is in the following terms:

25A Assault causing death

(1) A person is guilty of an offence under this subsection if:

(a) the person assaults another person by intentionally hitting the other person with any part of the person’s body or with an object held by the person, and

(b) the assault is not authorised or excused by law, and

(c) the assault causes the death of the other person.

Maximum penalty: Imprisonment for 20 years.

(2) A person who is of or above the age of 18 years is guilty of an offence under this subsection if the person commits an offence under subsection (1) when the person is intoxicated.

Maximum penalty: Imprisonment for 25 years.

(3) For the purposes of this section, an assault causes the death of a person whether the person is killed as a result of the injuries received directly from the assault or from hitting the ground or an object as a consequence of the assault.

(4) In proceedings for an offence under subsection (1) or (2), it is not necessary to prove that the death was reasonably foreseeable.

(5) It is a defence in proceedings for an offence under subsection (2):

(a) if the intoxication of the accused was not self-induced (within the meaning of Part 11A), or

(b) if the accused had a significant cognitive impairment at the time the offence was alleged to have been committed (not being a temporary self-induced impairment).

(6) In proceedings for an offence under subsection (2):

(a) evidence may be given of the presence and concentration of any alcohol, drug or other substance in the accused’s breath, blood or urine at the time of the alleged offence as determined by an analysis carried out in accordance with Division 4 of Part 10 of the Law Enforcement (Powers and Responsibilities) Act 2002, and

(b) the accused is conclusively presumed to be intoxicated by alcohol if the prosecution proves in accordance with an analysis carried out in accordance with that Division that there was present in the accused’s breath or blood a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood.

(7) If on the trial of a person for murder or manslaughter the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1) or (2), the jury may acquit the person of murder or manslaughter and find the person guilty of an offence under subsection (1) or (2). The person is liable to punishment accordingly.

(8) If on the trial of a person for an offence under subsection (2) the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1), the jury may acquit the person of the offence under subsection (2) and find the person guilty of an offence under subsection (1). The person is liable to punishment accordingly.

(9) Section 18 does not apply to an offence under subsection (1) or (2).

(10) In this section, cognitive impairment includes an intellectual disability, a developmental disorder (including an autistic spectrum disorder), a neurological disorder, dementia, a mental illness or a brain injury.

Alternative verdicts

The offences under section 25A are statutory alternative verdicts to murder and manslaughter: section 25A(7). The basic offence under section 25A(1) is an alternative verdict to the aggravated offence under section 25A(2): section 25A(8).

Maximum penalty & minimum NPP

Section 25A is strictly indictable. The maximum penalty for an offence contrary to section 25A(1) is 20 years’ imprisonment and 25 years’ imprisonment for the aggravated offence against section 25A(2).

Section 25B(1) provides that a person convicted of an offence under section 25A(2) is to be sentenced to a non-parole period of not less than 8 years. The related offence of manslaughter contrary to section 24, although carrying the same 25-year maximum as section 25A(2), has no corresponding minimum non-parole period.

Elements

Section 25A(1); The prosecution must prove BRD that the accused:

Intentionally assaulted the victim;

By hitting him/her;

Without authorisation or lawful excuse;

Causing the victim’s death.

Section 25A(2); The prosecution must prove BRD that the accused:

Being aged 18 years or above; and

Being intoxicated;

Intentionally assaulted the victim;

By hitting him/her;

Without authorisation or lawful excuse;

Causing the victim’s death.

Actus reus: Assault by hitting

Assault in the context of section 25A is expressly limited to a particular form of battery that is, by hitting, involving the application of force rather than a mere touching.

To strike another with a missile (for example where a person throws a bottle or brick) will not suffice under section 25A because of the limitation that an object used to strike must be held.

Mens rea: Intent to hit another

The intent required is merely an intention to hit another. As section 25A(4) expressly states, the prosecution is not required to prove that the accused reasonably foresaw that death might result. The mens rea requirement does not extend to where a person recklessly assaults another person. This differentiates a section 25A assault from common assault and manslaughter.

Unlike common assault under section 61, for a section 25A assault an actual intent to hit must be proved and not merely recklessness.

The assault causing death offence has neither the subjective fault elements of murder nor the objective fault elements of manslaughter; unlike manslaughter, the prosecution does not have to prove an objectively appreciable risk of serious injury.

Without authorisation or lawful excuse

Section 417 provides that wherever doing a particular act without authority is expressed to be an offence, the proof of such authority or excuse shall lie on the accused.

However, section 419 provides that where self-defence is raised, the prosecution has the onus of proving that the accused did not act in self-defence.

Causing death

Section 25A(3) suggests a definition of causation for the purposes of the offence: “For the purposes of this section, an assault causes the death of a person whether the person is killed as a result of the injuries received directly from the assault or from hitting the ground or an object as a consequence of the assault.”

It follows that some indirect deaths following an assault by hitting, for example when a victim dies during an escape to avoid further violence, may not be regarded as being caused by the assault. This is unlike murder, where there have been cases of a person causing death by inducing fright, shock or mental suffering.

Being intoxicated

There is no definition of “intoxicated” in the Crimes Act. Section 428A provides that “intoxication means intoxication because of the influence of alcohol, a drug or any other substance.”

Dictionary definitions of “intoxicate” speak of “to affect temporarily with loss of control over the physical and mental powers”; “to excite mentally beyond self-control or reason”; and “to deprive of the ordinary use of senses or reason.”

Judicial definitions of intoxication are few. In R v Ormsby [1945] NZLR 109 Fair J directed a jury that, “a man is in a “state of intoxication” … when as a result of his consumption of intoxicating liquor, his physical and mental faculties, or his judgment, are appreciably and materially impaired in the conduct of the ordinary affairs or acts of daily life.”

Very recently, in R v Johnson (No 4) [2017] NSWSC 609 (17 May) Justice Button considered “intoxication” in the context of determining what direction to give the jury in a murder trial about the element of intoxication as part of an alternative allegation that the accused committed an offence under section 25A. His Honour observed that this element of section 25A had not been the subject of judicial consideration before.

His Honour directed the jury that “intoxicated” is an ordinary English word, in common parlance, with its ordinary English meaning in Court. His Honour suggested to the jury that the concept of a person being intoxicated by alcohol could be expressed more plainly as the person being “drunk” and it involves something more than a person having a small amount of alcohol in his or her body, without it affecting that person, or with it affecting him or her only to a very small degree. Finally, his Honour went on to suggest to the jury that as a matter of common English usage, a person who is merely tipsy or “happy” would not be thought of as intoxicated.

Section 25A(6)(b) provides that the accused is conclusively presumed to be intoxicated by alcohol if the prosecution proves, in accordance with a Div 4 Pt 10 analysis, that there was present in the accused’s breath or blood a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood.

Under section 428E, which was introduced alongside section 25A, where evidence of intoxication results in a person being acquitted of murder, if the intoxication was self-induced, this cannot be taken into account in determining whether the person had the requisite mens rea for an offence under section 25A.

Section 428E is in the following terms:

428E Intoxication in relation to murder, manslaughter and assault causing death

(1) If evidence of intoxication at the time of the relevant conduct results in a person being acquitted of murder:

(a) in the case of intoxication that was self-induced—evidence of that intoxication cannot be taken into account in determining whether the person had the requisite mens rea for manslaughter or for an offence under section 25A, or

(b) in the case of intoxication that was not self-induced—evidence of that intoxication may be taken into account in determining whether the person had the requisite mens rea for manslaughter or for an offence under section 25A.

(2) An offence under section 25A is not an offence of specific intent for the purposes of this Part [Pt 11A Intoxication].

Defences

Two defences are expressly stated to apply under section 25A(2), namely: (a) that the intoxication was not self-induced within the meaning of Pt 11A, or (b) that the accused had, at the relevant time, a (non-temporary, self-induced) significant cognitive impairment. “Cognitive impairment” is defined in section 25A(10).

Other possible defences include:

No absence of consent (although commonly more properly considered an element of assault);

An absence of voluntariness in that the act of hitting was not a voluntary act;

Mental illness;

Necessity;

Duress;

Self-defence.

Other legislative additions relevant to section 25A

Div 4 Pt 10 of LEPRA, sections 138D – H, provides that a person arrested for an alleged offence under section 25A, or for an assault which could lead to the person being charged under section 25A in the event of the victim’s death, may be required by a police officer to undergo testing or provide samples to determine whether that person was intoxicated by alcohol or drugs.